Informing the Ignorant About the Law (1 Viewer)

[Ziff]

Hallo,
I was wondering if any of you have ever been in a situation where you had to inform someone or a company about what the law actually is as opposed to what they were telling you it is and how you went about telling them?

See, I want to rent this property, however, the real estate agents tells me two things:
a) That because I am under 18 I cannot sign the lease
b) That they need someone who is over 18 to be on the lease as well even though that person is not living there.

Under the Minors (Property and Contracts) Act 1970 under Section 19 it states basically that a minor is allowed to sign contracts/leases that are for their benefit.

"19 Beneficial civil act

Where a minor participates in a civil act and his or her participation is for his or her benefit at the time of his or her participation, the civil act is presumptively binding on the minor. "

Yeah? And I found two case studies that deal with that and basically say it works.

Then for the other part where they expect a guarantor type of arrangement this isn't allowed under the Landlord and Tenants (Rental Bonds) Act 1977 under S. 9 and S. 14.

"9 Rental bonds to be in money

(1) Notwithstanding the terms of any agreement, no person as lessor of residential premises shall, in respect of a lease or proposed lease of those premises, demand or receive from another person anything, other than money, that would have the effect of securing the lessor against any failure by a lessee to comply with any terms or conditions applying to or in connection with that lease or proposed lease, whether that thing is to be received by or deposited with:

(a) the lessor,

(b) another person in accordance with the directions of the lessor or the terms or conditions of the lease or proposed lease, or

(c) another person acting on behalf of the lessor. "

and

"14 Contracts to evade Act prohibited

(1) A person shall not enter into or make any contract or arrangement, whether orally or in writing, for the purpose of, or which has the effect of, in any way, and whether directly or indirectly, defeating, evading or preventing the operation of this Act in any respect.

(2) Any contract or arrangement referred to in subsection (1) is void whether or not a person has been convicted under that subsection in respect of that contract or arrangement. "

Oh and of course they're technically not allowed to discriminate based on age either...

Anyway, if I am dealing with the agency in person and they claim that I can't sign the contract and demand a guarantor type arrangement do I inform them of this by mentioning the Act and section and what it basically says or otherwise how do I explain it to them and prove it (if they need it)?

 

[MoonlightSonata]

Originally posted by Ziff
do I inform them of this by mentioning the Act and section and what it basically says or otherwise how do I explain it to them and prove it (if they need it)?

I think its good you're finding application for the law already

You could discuss it with them but people tend to get very irritated when you "inform them" of the law too authoritatively, imo

Originally posted by Ziff
I was wondering if any of you have ever been in a situation where you had to inform someone or a company about what the law actually is as opposed to what they were telling you it is and how you went about telling them?

You'd be surprised how little retailers know about the sale of goods act!

 

[Ziff]

Originally posted by MoonlightSonata
You could discuss it with them but people tend to get very irritated when you "inform them" of the law too authoritatively, imo

Yeah, I know. That's why I want a nice way of telling them what the law actually is. Something involving the phrase "for your benefit" might be in order!

It's bad when they don't know about the law and there's no way you can exploit it to make $$$ or it's just a massive inconvenience as it is in this case.

 

[Lazarus]

I would recommend writing them a letter - they'll need time to look it over and think etc.

You're also assuming that a court would consider the lease to be for your benefit at the time the contract is executed... whereas the possibility of a minor being made liable for something would (I think) generally not be considered to be for their benefit.

If you run into trouble - something goes wrong with the lease - then I think it would be far easier for you to show that the lease wasn't for your benefit (and hence not binding) than it would be for the company to show the opposite. And so the company loses.

Shrug. Just a few thoughts. If you're certain, write them a polite explanatory letter.

 

[Ziff]

Yeah, I was thinking that too until I read through Bryant v. Arsanis (1996) http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWRT/1996/192.html in which the act was looked at and the issue of whether the lease was binding on the minor or not.

It was the only explanation of the act in regards to leases that I could find.

I also found this from Mills v. Marshal (2000) but it doesn't really cover the issue as well as Bryant v. Arsanis.

(b) Can a minor enter a residential tenancy agreement?

In New South Wales there is a legislative code in relation to the formation of an agreement known as the Minors (Property and Contact) Act 1970. By virtue of that legislation a person attains full age at the beginning of his or her eighteenth birthday. Persons under that age are minors. As such a settlement Ms Marshall has received from litigation would have to be managed. The concept of the civil act is central to the understanding of the legislation in the definition provided in section (1) of the Act. The civil act includes, amongst other things, both a contract and a lease. If a civil act is entered into for the minor's benefit, the participation in a civil act is presumptively binding, subject to other exceptions which do not need to be discussed here. As such the agreement could not be attacked on the basis that it is with a minor but rather on another matter that would vitiate the contract, for example, incapacity, mistake etc. See section 16 and section 19 of the Act and Cheshire and Fifoot paragraphs 17.46 to 17.47. As such, Ms Marshall was bound by the agreement.

 

[Ziff]

If interested...

If you're interested here's a copy of the letter (names, dates and addresses removed) which I am contemplating sending to the real estate agents.

 

[Lazarus]

It's very... confrontational.

What exactly are you trying to achieve?

You could also pursue the following avenue:

Bryant v Arsanis [1996] NSWRT 192:
...
Sections 26 and 27 Minors Act 1970 provide for the Supreme Court
and Magistrates Court, respectively, to approve a disposition of
property to a minor (including a lease) prior to the transaction.
The Courts can approve the transaction where it appears to be for
the minors benefit. There is nothing in either of these two
sections which suggests that this mechanism is a mandatory one, or
that it derogates in any way from the general effect of section 19.
Clause 22 of the LRC Report speaks of these provisions being
relevant to "the occasional case where it appears that a young
person is in fact competent to engage in affairs relating to
contracts and property even though he is under 18 and it appears
to be for his benefit that he not be under a disability".
...

It can seem like fun to drag someone through the tribunal system... but isn't usually worth it.

 

[Ziff]

Ha yeah! Nah, I have no intention of tribunal proceedings at all, unless of course they are really terrible. I'm going into the real estate agents tomorrow so I'll politely and tactfully ask them if they are aware of this legislation and then explain to them what it means and the implications of it. Then if they still decide to mess around with me I'll start being confrontational.

What I want to do is rent a property, that's why I asked of a tactful way to explain to them that these laws exist. I don't want to offend them - at least before I get the place I want to rent.

The real estate agent, however, is already asking for such things as a guarantor under the guise of a co-tenant and claiming I can't sign the lease as I am under age, so with this knowledge of the relevant cases and legislation I'm trying to think of when and how it would be most appropriate to bring to their attention these matters.

I've printed off the relevant Sections of the relevant Acts so that I can show them.

See, the key problem is that if someone else appears on the residential tenancy agreement then that is likely to affect my Centrelink payments. It means that either my independent youth allowance will be cut (if a parent signs as co-tenant even though they do not live there), the rent assistance will be at a lower rate or not given or both. That's why I'd rather another person not on the form.

 

[stamos]

This thread pisses me off. It's all about how to exploit the law to rent using government money when plenty of others (who are 'ignorant' as you politely put it) have jobs, study and still have to live at home.

Unless yours is some exceptional case where domestic violence is involved, i think you're just exploiting your knowledge of the law for a selfish reason. Sif justice.

I'm too idealistic to become a lawyer

 

[Ziff]

Read the non-school version of the thread. To get the independent rate of youth allowance you need to meet the criteria of "unreasonable to live at home" and this means you need to go before a counsellor/social worker, have your parents interviewed by them and also two other third parties.

So if you think I went though all that and divulged my entire life to some bureaucrat for a scam then you are very mistaken. There should not be a need to justify myself when I am inquiring about a legal problem.

Anyway, it's only recently I've gotten into the law and it was really only after I encountered these sort of underhanded and illegal practices on the part of real estate agents that I decided to go ahead and research my rights and responsibilities in regards to rental properties.

Some people can be smart, disadvatanged but work hard and identify solutions to their problems.

 

[Frigid]

wow, ziff... u are srsly gonna study law in the future right?

such proactive legal research skills are rarely seen! goodstuff

 

[Ziff]

Hell yeah. I'm gonna rock ANU Law School!

 

[reno2004]

Man ziff, i never knew u where this proactive and commited to something. Usually u are just a lazy arse.

 

[Josie]

He's still a lazy ass... just a SMART(lazy)ASS.
Anyway, its called incentive.

Stamos, its not "exploiting the law", its using the law to defend (oh how I hate this phrase) "your legal rights". Last time I checked, making someone aware of your rights under Australian law is not exploition.
Don't make stupid assumptions when you know nothing about someones context.

 

[sugared plum]

Originally posted by stamos
This thread pisses me off. It's all about how to exploit the law to rent using government money when plenty of others (who are 'ignorant' as you politely put it) have jobs, study and still have to live at home.

Unless yours is some exceptional case where domestic violence is involved, i think you're just exploiting your knowledge of the law for a selfish reason. Sif justice.

I'm too idealistic to become a lawyer

wtf are you talking about? it's 'idealistic' if we all live in ignorance of our rights and responsibilities under the law? deluded more likely.

 

[sugared plum]

like i don't know anything about Ziff or why he's moving out of home, and that's essentially beside the point. He has rights and privileges and there is no reason why he cannot use them. He is not exploiting the system in any way? as for exploiting his knowledge of the law - everyone has access to austLII via internet free at their local library, there are legal advice centres such as Kingsford which give free advice, even call centres with 1800 numbers.

 

[Ziff]

Yeah, what he displayed was cynicism - believing that the actions are motivated by selfishness as where as to be idealistic is where your views would be in conflict with practical considerations...

It's everyone's right to use the law to achieve justice. If some people take it upon themselves to research to the best of their ability the law so that they can achieve justice they should not be unfairly labelled and dismissed because of it. Anyone can do it.

 

[santaslayer]

good stuff ziff.....ur gonna become a good legal practicionor!

btw, i still havn't read ur arguments in NS